Employees who report illegal conduct or practices by their employer are known as “whistleblowers.” There are several legal protections for whistleblower activity meant to encourage public and private employees to speak up when they witness their employers engaging in unlawful activity. Employees and employers should seek legal representation to understand their rights and obligations concerning whistleblower activity, including potential legal liability imposed on employers for whistleblower retaliation.
What Rights Do Whistleblowers Have?
Federal and state laws protect whistleblowers and prohibit retaliation against employees who report illegal conduct or engage in similar protected activities. Many adverse employment actions can be seen as retaliatory, including firing or demotion; denial of overtime, promotions or benefits; and other forms of discipline.
Federal Law Affecting Whistleblower Activity
Several federal laws protect whistleblowers. Broadly speaking, they divide into civil and criminal laws. On the civil side, whistleblower issues typically arise in administrative and labor law contexts, or in financial crimes reporting.
Administrative law concerning whistleblowers includes protections for federal employees, primarily under the Whistleblower Protection Act of 1989. Several Presidential executive orders also protect federal employees from whistleblower retaliation. Whistleblower protection laws for the military include SECNAVINST 5370.7C: Military Whistleblower Reprisal Protection; 10 U.S.C. 1034 Military Whistleblower Act; and the Department of Defense Directive.
The Directorate of Whistleblower Protection Program of the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) investigates whistleblower retaliation under several statutes:
- The Whistleblower Protection Act of 1989 (protecting government employees);
- The False Claims Act (protecting employees from retaliation for reporting false claims made by their employer for government payments);
- The Surface Transportation Assistance Act (largely applying to the commercial trucking industry);
- The Asbestos Hazard Emergency Response Act (relating to asbestos in elementary and secondary school systems);
- The International Safe Container Act (concerning unsafe cargo containers);
- The Energy Reorganization Act (ERA) (relating to the nuclear power and nuclear medicine industries);
- The Clean Air Act, Safe Drinking Water Act, Federal Water Pollution Control Act, Toxic Substances Control Act, Solid Waste Disposal Act, Comprehensive Environmental Response, Compensation, and Liability Act (concerning employee protection for reporting violations of certain environmental laws or regulations);
- The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (protecting air carrier employees and their contractors and subcontractors);
- The Sarbanes-Oxley Act, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (protecting employees of certain Securities and Exchange Commission (SEC) reporting companies for employee reporting of violations of the Federal mail, wire, bank, or securities fraud statutes, any rule or regulation of the SEC, or any other provision of Federal law relating to fraud against shareholders);
- The Pipeline Safety Improvement Act (concerning pipeline safety);
- The Federal Rail Safety Act (relating to railroad safety or security);
- The National Transit Systems Security Act (relating to public transportation safety or security, or fraud, waste, or abuse of Federal grants or other public funds intended to be used for public transportation safety or security);
- The Moving Ahead for Progress in the 21st Century Act (protecting employees of motor vehicle manufacturers, part suppliers, and dealerships);
- The Consumer Product Safety Improvement Act (protecting employees of manufacturers, private labelers, distributors, and retailers);
- The FDA Food Safety Modernization Act (protecting employees of food manufacturers, distributors, packers, and transporters);
- The Consumer Financial Protection Act (protecting employees performing tasks related to consumer financial products or services;
- The Affordable Care Act (protecting employees who report discrimination based on an individual’s receipt of health insurance subsidies or denial of coverage based on a preexisting condition); and
- The Seaman’s Protection Act (protecting sailors).
Whistleblower programs also exist through the SEC and Commodities Futures Trading Commission (CFTC), which rewards individuals who report evidence of financial crimes by allocating a percentage of recovered funds to individuals providing new information material to an investigation. Similar incentive/reward programs arise in “qui tam” actions in which a reporting source of illegal activity may be entitled to a percentage of recovery.
Many states have whistleblower laws barring retaliation against those who report violations of laws involving public health and safety, discrimination, wages and hours, and taxpayer-funded programs. These state laws are widely varying, described as “patchwork and vagaries” by the Senate Judiciary Committee in its 2002 passage of the Sarbanes Oxley Act. New York separately protects general employees, healthcare workers, and public employees from any adverse action by employers for disclosing or threatening to disclose certain types of conduct. The precise application of state laws to whistleblower protections or claims is a complex matter that often requires knowledgeable counsel to determine.
Understanding Whisteblowing and Retaliation
Though “whistleblowing” and “retaliation” are sometimes used interchangeably, they are not the same. Typically, whistleblowing involves reporting violations of laws protecting a broad public interest (e.g., environmental, government accountability, etc.). Retaliation is the term more often used when discussing adverse actions against employees for whistleblowing activity, such as termination of employment. Employers should carefully assess a situation involving an adverse employment action to ensure that they are not at risk of a retaliation claim.
Are There Any Exceptions to Whistleblower Laws?
Federal and state laws vary and allow exceptions or special procedures for certain types of employees. For example, some non-federal public sector employees (those employed as municipal, county, state, territorial, or federal workers) are not subject to OSHA’s whistleblower enforcement but have claims heard through the Office of Special Counsel.
Employers and employees should be aware of whistleblower laws and protections. In any potential whistleblower or retaliation situation, it is critical for employers and employees to maintain records relevant to any whistleblower reporting or adverse employment action. Individuals who uncover illegal activity may also have the right to bring qui tam actions or obtain monetary compensation for the time, effort, and risk of reporting. It is important to seek advice of competent counsel for guidance on the application of state and federal whistleblower laws in any specific situation and the best course of action.
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